By

Henry A. Arnett

Livorno and Arnett Co., LPA

1335 Dublin Road, Suite 108-B

Columbus, Ohio 43215

Telephone: 614-224-7771

After the November election, the Bush Administration Department of Labor formally issued new regulations under the Family and Medical Leave Act (FMLA). The new regulations become effective January 16, 2009, conveniently just before the inauguration of a new President. Some, but certainly not all, of the changes are be summarized below.

The Ragsdale Penalties: The old regulation contained a “categorical” penalty for failure to appropriately designate FMLA leave — an employer who failed to designate leave as FMLA leave initially had to provide an additional 12 weeks of FMLA-protected leave after the leave the employee had already received. This rule was invalidated in Ragsdale v. Wolverine World Wide, Inc., which held the rule was inconsistent with the statutory entitlement to only 12 weeks of FMLA leave and contrary to the statute’s remedial requirement that an employee demonstrate individual harm. The new rule removes the categorical penalty provisions and clarifies that where an employee suffers individualized harm, because the employer failed to follow the notification rules, the employer may be liable.

Light Duty: Employees may continue to decline offers of light duty and remain on FMLA leave; however, declining light duty might result in the loss of workers’ compensation benefits, sick leave, etc., as a result. The new regulations clarify that time spent performing “light duty” work does not count against an employee’s FMLA leave entitlement. If an employee is voluntarily performing a light duty assignment, the employee is not on FMLA leave.

Waiver of Rights: The new rule codifies the DOL’s position that employees may voluntarily settle or release their FMLA claims without court or Department approval. However, prospective waivers of FMLA rights are prohibited. Thus, an employee may not waive his/her FMLA rights in advance, but may otherwise waive or release those rights as part of a settlement or a severance agreement.

Serious Health Condition: The new rule retains the six individual definitions of serious health condition but attempts to provide further clarification. If a serious health condition is based on two doctor visits, the new rule requires that the two visits must occur within 30 days of the beginning of the period of incapacity, and the first visit to the health care provider must take place within seven days of the first day of incapacity. If a serious health condition is based upon more than three consecutive, full calendar days of incapacity plus a regimen of continuing treatment, the new rule mandates that the first visit to the health care provider must take place within seven days of the first day of incapacity. Also the new rule defines “periodic visits” for chronic serious health conditions as at least two visits to a health care provider per year.

Substitution of Paid Leave: The law allows the employer to count the employee’s use of paid leave toward the 12 weeks allotment. The regulations clarify that the terms and conditions of an employer’s paid leave policies must be followed by employees when any form of accrued paid leave, including vacation, personal leave, sick leave, etc. is substituted for unpaid FMLA leave. However, employers must notify employees of any additional requirements for the use of paid leave and must inform employees that they remain entitled to unpaid FMLA leave even if they choose not to meet the terms and conditions of the employer’s paid leave policies (such as using leave only in full day increments or completing a specific leave request form).

Attendance Awards: Currently, employers who have attendance bonuses, incentives, etc., must disregard FMLA leaves when it pays those benefits. The new regulations reverse this policy; employers would now be permitted to consider and disqualify an employee from a bonus or award because of an FMLA absence.

Fitness-For-Duty Certifications: The regulations retain the basic fitness-for-duty certification procedures but permit employers to contact directly the health care provider for purposes of authenticating and clarifying the fitness-for-duty statement. The regulation clarifies that employees are not entitled to reinstatement if they do not provide the requested fitness-for-duty certification or request additional FMLA leave. A major change from the current regulations concerns the scope of the fitness-for-duty certification. Previous FMLA regulations required health care providers to provide no more than a “simple statement” of the employee’s ability to return to work. The new regulations require more. When requested by employers, a health care provider must assess the employee’s ability to return to work against the essential functions of the employee’s position.

Medical Certification Process: The new regulations make significant changes in the certification process. Of particular note, an employer may now directly contact an employee’s health care provider to authenticate or to obtain a clarification of information required by a certification form. However, an employee’s “direct supervisor” is prohibited from making these inquiries; only a “health care provider, a human resources professional, a leave administrator (including third-party administrators), or a management official” may do so. Employers may not ask health care providers for additional information beyond that required by the certification form.